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Osetek v. Jeremiah11/15/2005
Jean Marie Osetek (plaintiff) appeals from an order filed 11 December 2003 denying her motion for judgment notwithstanding the verdict (JNOV) and for a new trial for damages arising out of a car accident with Jason Lee Jeremiah (defendant). On 17 April 2001, plaintiff was operating her car in a southerly direction on Merchant Drive in Apex, North Carolina. Plaintiff stopped her car at a stop sign. Defendant failed to stop his car and drove into the rear end of plaintiff's car.
Plaintiff filed a complaint on 8 March 2002 requesting monetary damages from defendant for personal injuries sustained as a result of the accident. On 1 May 2002, defendant filed an answer which denied negligence and alleged plaintiff was contributorily negligent. By consent order dated 23 September 2003, this case was transferred to the Superior Court Division of Wake County.
At trial, plaintiff tendered and offered into evidence various medical bills totaling $15,554.30 incurred for treatment of her injuries. In addition to her own testimony, plaintiff presented testimony of her chiropractor, Dr. Robert Baric and several other witnesses before resting her case-in-chief.
Plaintiff and defendant's motions for directed verdict at the close of plaintiff's evidence and at the close of all evidence were denied. Plaintiff's motion on the issue of contributory negligence was allowed, all other motions were denied.
During the charge conference, plaintiff offered written requests for special jury instructions on the issues of presumptions and damages which were denied. After the trial court concluded its instructions to the jury, plaintiff renewedobjections to the instructions and renewed requests for instructions to the trial court.
The jury returned a verdict answering the first issue, "Was Jean Marie injured by the negligence of the defendant, Jason Jeremiah?" "Yes"; and the second issue, "What amount is the plaintiff entitled to recover for her personal injuries?" "$600.00." On 14 August 2003, a written judgment was entered by the trial court for plaintiff to receive $600.00 in damages for personal injuries.
On 18 August 2003, plaintiff filed a written motion pursuant to Rules 50, 59 and 60 of the North Carolina Rules of Civil Procedure for JNOV and for a new trial. By order filed on 11 December 2003, the trial court denied plaintiff's motion for JNOV and for a new trial. Plaintiff appealed.
On appeal plaintiff raises the following issues whether the trial court erred in: (I) failing to submit plaintiff's requested jury instructions; (II) signing and entering the 14 August 2003 judgment; and (III) denying plaintiff's motion for JNOV and for a new trial. Defendant cross-assigns as error whether the trial court erred in (IV) entry of a directed verdict on the issue of plaintiff's contributory negligence.
I.
Plaintiff argues the trial court failed to properly instruct the jury on the issue of presumptions related to the reasonableness of medical care charges and personal injury damages, and she is therefore entitled to a new trial. We disagree.
To prevail on the issue of whether her requested instructions should have been given to the jury, plaintiff must demonstrate that:
(1) the requested instruction was a correct statement of the law, and (2) was supported by the evidence, and that (3) the instruction given, considered in its entirety, failed to encompass the substance of the law requested, and (4) such failure likely misled the jury.
Liborio v. King, 150 N.C. App. 531, 534, 564 S.E.2d 272, 274 (2002). A jury charge will be sufficient if it presents the law of the case in
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